Section 26C

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Section 26C: Forfeiture of snow or recreation vehicle due to violation of Sec. 26B or subsequent violation of Sec. 26; petition; hearing; dispensation of proceeds from sale of vehicle upon forfeiture

Section 26C. (a) Upon a conviction or adjudication by reason of a violation of subsections (c) to (e), inclusive, of section 26B or upon a second or subsequent conviction or adjudication of delinquency for violation of section 26, or any combination thereof, a snow vehicle or recreation vehicle used in the commission of such violation or violations shall be subject to forfeiture.

(b) A district attorney or the attorney general may petition the superior or district court in the name of the commonwealth in the nature of a proceeding in rem to order forfeiture of such snow vehicle or recreation vehicle. The petition shall be filed in the court having jurisdiction over the criminal proceeding brought under this section. The proceeding shall be deemed a civil suit in equity. In all such actions in which the snow vehicle or recreation vehicle is jointly owned before the date of the violation committed by the defendant by either a parent, spouse, child, grandparent, brother, sister or parent of the spouse living in the defendant's household, the commonwealth shall have the burden of proving to the court the existence of probable cause to institute the action.

(c) The court shall order the commonwealth to give notice by certified or registered mail to the owners of the snow vehicle or recreation vehicle and to such other persons or entities who appear to have an interest therein, and the court shall promptly, but not less than 2 weeks after notice, hold a hearing on the petition. Upon the motion of an owner of the snow vehicle or recreation vehicle, the court may continue the hearing on the petition pending the outcome of a criminal trial related to the violation. During the pendency of the proceedings, the court may issue at the request of the commonwealth ex-parte any preliminary order or process as is necessary to seize or secure the property for which forfeiture is sought and to provide for its custody. Process for seizure of the property shall issue only upon a showing of probable cause, and the application therefor and the issuance, execution and return thereof shall be subject to chapter 276, as applicable.

(d) At a hearing under this section, the court shall hear evidence and make findings of fact and conclusions of law and shall issue a final order from which the parties shall have such right of appeal as from a decree in equity. No forfeiture under this section shall extinguish a perfected security interest held by a creditor in the property at the time of the filing of the forfeiture action. In all actions where a final order results in forfeiture, the final order shall provide for disposition of the property by the commonwealth or any subdivision thereof in any manner not prohibited by law, including official use by an authorized law enforcement or other agency, or at sale at public auction or by competitive bidding, with the sale being conducted by the office of the district attorney or the attorney general that obtained the final order of forfeiture.

(e) The final order of the court shall provide that the proceeds of any such sale shall be used to pay the reasonable expenses of the forfeiture proceedings, seizure, storage, maintenance of custody, advertising and notice, and 75 per cent of the balance of any proceeds shall be deposited into the Off?Highway Vehicle Program Fund, established in section 35OO of chapter 10 and the remaining 25 per cent shall be distributed equally by the court among the division, departments or offices involved in the seizure or to the division, department or office if a single law enforcement agency was involved.

(f) Any moneys and proceeds received by a division, department or office pursuant to this section may be expended without further appropriation to defray the costs of investigations, to provide additional technical equipment or expertise, to provide matching funds to obtain federal grants or to accomplish such other law enforcement, environmental or public recreational purposes as the head of such division, department or office deems appropriate, but such funds shall not be considered a source of revenue to meet the operating needs of such division, department or office.